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Sociology of Law

Sociology of Law

by Roger Cotterrell

Editorial Reviews

Mark Kessler
In this sophisticated text, Roger Cotterrell -- a noted British legal theorist -- provides a creative and highly useful synthesis of extant theory and empirical research on law and society. Accessibly written, the text investigates and interrogates the roles of law in society emerging from significant classical and contemporary theories and intellectual movements (including the works of Sumner, Savigny, Ehrlich, Weber, Marx, Durkheim, Parsons, Llewellyn, Arnold, Pashukanis, Luhmann, Teubner, and others). A vast and impressive range of empirical studies conducted in Europe and the United States are summarized and analyzed for how they may help address broad theoretical concerns. The author urges readers to value theoretical work and think about how sociolegal studies may address and fit into broader concerns raised in social theory. "An understanding of law's social effects and of the social factors that shape it," writes Cotterrell, "requires legal theory -- theory which attempts to explain systematically the nature of law. However, because law IS AN ASPECT OF SOCIETY, a part of a larger social field, this theory must itself be informed by -- and a part of -- social theory." (emphasis on original, 65) The book opens with the author's conception of sociolegal studies. He makes a convincing argument for theory and research that transcend the narrow disciplinary boundaries of law and/or sociology. He then practices interdisciplinary analysis in two chapters that examine the relationship of law to society, moving easily from work positing a fairly strict separation to that explicitly assessing reciprocal relations. In succeeding chapters, Cotterrell provides unusually clear descriptions and useful critical analyses of functionalist theories that view law as an instrument of social integration and Marxist accounts of law as coercive power expressing the interests of particular groups. Throughout these chapters, the author identifies implicit theoretical assumptions about the nature of law and society that guide the many empirical literatures he surveys. The strengths and weaknesses of these theoretical and empirical writings are assessed with great skill and clarity. Not content to write a text that simply describes diverse perspectives, Cotterrell seeks "to advance the literature."(x) He achieves this objective admirably by introducing the notion of law as ideology as a way of integrating competing approaches. Indeed, Cotterrell brilliantly draws on a broad range of social and legal theory (including a useful discussion of recent work in autopoiesis), as well as a voluminous amount of empirical research, to create his own conceptual framework based on an examination of law as ideology. As he sees it, both functionalist and Marxist accounts of law provide insights into law's role and relationship to society that are partial at best. The notion that law is an ideological formation -- that it shapes consciousness; that it contributes to the construction of "common-sense" knowledge -- helps to overcome limitations in both perspectives. Page 73 follows: If law has the capability to constitute authoritative accounts of social relations that shape individual understandings of the social world, it may be viewed as both an instrument of social integration reflecting social consensus (as functionalists would have it) and a coercive force expressing inequalities in social relations (as Marxist and power elite theories see it). Law may help forge the social consensus assumed by functionalists, but the consensus may perpetuate hidden inequalities. Cotterrell's conception of law as ideology is creatively applied to major legal actors and institutions in three separate chapters on the legal profession, courts and judges, and agencies of law enforcement. These chapters seek to show how aspects of empirical research on each topic illuminate law as ideology. For example, Cotterrell suggests that an array of theoretically limited social studies of courts add up to a view of courts as functioning to construct normative order by creating and maintaining ideology. I am reluctant to criticize a book that covers so much territory for what it fails to discuss. But it is curious that a text relying so heavily on the concept of legal ideology spends little time on the work of Foucault (whose picture adorns the book's cover, but whose ideas are only mentioned briefly in passing) or Gramsci and ignores completely Bourdieu, Derrida, and work in feminist jurisprudence. Cotterrell does include a short section on postmodern jurisprudence in his concluding chapter, but it accomplishes very little, reading like a late add-on to this text's second edition. The author acknowledges that the best postmodern writing "illustrates, sometimes in highly effective ways, important characteristics of legal rhetoric." (309) But he does not discuss which postmodern writings do this, nor does he suggest how they accomplish this task. Ultimately, Cotterrell dismisses postmodernism because "most postmodern writing on law appears to avoid all concern with empirical study of specific social contexts of legal doctrine or institutions, or with theory aimed directly at empirical explanation." (309) This critique of postmodernism, emerging from a view of social science and the place of empirical investigation in it, illuminates one of the few areas where Cotterrell confuses, rather than clarifies. At times, his conception of science seems to draw from contemporary feminist and postmodern critiques; he acknowledges, for example, that "all perspectives on experience are necessarily partial and incomplete." (4) At times, he seems to reject the assumptions of positivism and embrace interpretive methodologies. But throughout the text, one has the feeling that Cotterrell still has at least one foot firmly planted in the positivist camp, such as when he urges his readers to "attempt to overcome the limitations of partial perspectives through systematic collection, analysis, and interpretation of the empirical data of experience." (4) This confusion is magnified in the concluding chapter when Cotterrell seems to argue for a sociology of law that is, first and foremost, an ideology critique. He suggests that sociolegal studies may be put at the service of "have nots" through "its efforts to make its critique of law's self-images a part of everyday understanding outside the academy and the professional world of law." (313) But in the same section, he argues that Page 74 follows: sociolegal studies "must aim to interpret complexity, rather than replicate it or hide within it; it must seek to reveal the broadest significance of the social details it studies, to build bridges between the legal experience of individuals and of different social groups, to construct perspectives that connect disparate specialized or localized knowledges." Cotterrell goes on to critique one postmodern conception of science, arguing that sociolegal studies "cannot be satisfied with a 'localised, particularistic, and strategic science"'... (Cotterrell, citing Austin Sarat's "Off to Meet the Wizard," in the 1990 LAW AND SOCIAL INQUIRY). Since many contemporary feminist and postmodern writers view science in much the same way as Cotterrell views law -- as an ideological formation that constructs powerful and authoritative accounts of social life -- the author is obliged to provide a more detailed justification for his position, one that squares his view of law with his view of science. Despite these reservations, I highly recommend this text for advanced undergraduate and graduate courses in law and society. The book is more sophisticated theoretically than any other book of its kind of which I am aware, is extraordinarily well written, and for the most part is convincingly argued. It is by no means an easy read, however. Students will need to work hard to master its details, but they will be richly rewarded for having done so. This text promises to teach students to ask important questions about law and society. It shows how a creative mind can employ narrowly focused empirical research to address fundamental questions. And, finally, it suggests future research directions that may be mined fruitfully by students and faculty alike.

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LEXIS Publishing
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